Legal action by the broadcasting union, BECTU, against Ofcom has revealed that in 2005 the broadcasting regulator adopted a policy of taking no enforcement action against broadcasters in breach of their licence conditions on diversity.

The decision of the Information Tribunal, which heard BECTU’s Freedom of Information Act appeal against the Information Commissioner and Ofcom, took the unusual step of adding an “observation” to the end of its decision, which has now been promulgated, criticising the regulator for its entire handling of the union’s request over the last two years.

Freedom of Information request

The union had made a straightforward request under the FOI Act in 2007 for the regulator to disclose the ethnic monitoring data that it collected from all qualifying licence holders for the year 2005. BECTU was merely asking for the same kind of data that its predecessor, the Independent Television Commission, published annually as a matter of course.

Ofcom refused, claiming the FOI Act barred it from doing so and disclosure of the data was not necessary. Ofcom also argued that it was not bound by the previous disclosure by the ITC because the regulatory landscape had changed. BECTU disagreed, arguing that under the Communications Act the regulator had the right to disclose this information if it was made “for the purpose of facilitating the carrying out by Ofcom of any of their functions”.

Appeal to Information Commissioner

BECTU appealed to the Information Commissioner which last year rejected the union’s argument on grounds with which the union disagreed, leaving BECTU no option but to go to the Information Tribunal.

Their judgement agreed with BECTU’s argument – eventually admitted in court even by Ofcom – that the regulator does have the right to disclose this information. But the tribunal has allowed Ofcom to keep this data secret because the regulator successfully argued that its decision to publish only a summary of the data, along with other steps taken, satisfied its duty to take all steps as it considered appropriate to promote equal opportunities.

To win this argument Ofcom had to reveal, for the first time in more than two years, the real reason for its reluctance to publish the full data. They told the court that in 2005 they had decided that the measures they had for enforcing companies’ compliance with their obligatory licence conditions on diversity – fining them or revoking their licence – were “draconian” and “resource intensive given the number of cases”.

So rather than view the widespread breach of licence conditions as a call for serious enforcement action, Ofcom chose not to enforce broadcasters’ licence conditions on diversity at all.

Ofcom chose not to disclose monitoring data

Having apparently dismissed the use of their own enforcement powers, all Ofcom felt it could do was “encourage a climate of compliance”. They concluded therefore that disclosing the companies’ ethnic monitoring statistics might “discourage broadcasters from providing such information in the future”. Provision of this information is an obligatory condition of broadcasting licences, not a voluntary option.

Although the tribunal found that Ofcom’s decision not to release the raw data was not irrational, it criticised Ofcom’s handling of the matter stating:

“We would observe that Ofcom’s handling of this case has possibly led to this appeal being pursued. Ofcom handled the request, the internal review and the complaint before the IC in such a way that it was not clear why it had taken the steps it did in relation to the employment data obtained from broadcasters. If it had been clearer from the start it may have avoided this litigation.”

BECTU general secretary, Gerry Morrissey, commented:

“Ofcom’s shocking admission that its policy was not to enforce contract compliance on diversity is a staggering indictment of their attitude to equality and makes a mockery of licence regulation. What is the point of Ofcom issuing licences with conditions attached if they then quite deliberately choose not to bother enforcing them?”

“Ofcom’s opinion that fining companies in breach of contract on diversity is “draconian”, and they don’t want to use their resources doing so, shows precisely how unimportant equality is to them.

“That they are keeping secret licence holders’ ethnic monitoring data for fear that disclosing it might discourage them from fulfilling their compulsory licence conditions makes Ofcom’s position frankly ridiculous.

“Ofcom is obliged by the Communications Act to have regard, in carrying out its duties, to the different interests of the different ethnic communities within the UK. We fail to see how Ofcom’s actions can possibly be in their interests.”

The broadcasting union shares the previous regulator’s view of the importance of broadcasters’ equality monitoring data being open to scrutiny.

The public has a right to see how far the licence holders reflect the diversity of those on whose behalf they have been awarded their licences. Ofcom appears determined that the public will not find out. What are they hiding?

BECTU is now demanding intervention from the Equalities and Human Rights Commission and the Government Equalities Office to compel the regulator to change its policy.